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Show THE RIPARIAN RIGHT 69 calculations.350 However, the appellate courts found no riparian rights in the case and hence had no occasion to pass on this application of the definition in Motl v. Boyd. Floodwaters of a stream that occur annually with practical regularity, and therefore cannot be said to be unprecedented or extraordinary, are held by the Washington Supreme Court to be part of the stream to which riparian rights attach. The court conceded the possibility that there would be no riparian rights in unprecedented or extraordinary floodwaters, but emphasized that the facts were otherwise in this case.351 (3) In contrast with some of the mainland decisions that have limited riparian rights to the lower streamflows, the Supreme Court of Hawaii rendered two decisions the combined result of which is that the riparian doctrine applies, as between major land units contiguous to a stream, to the surplus freshet waters of the stream but not to the surplus normal flow.352 Return flow from foreign waters.-The courts of California and Washington held that the return flow from foreign waters-that is, waters brought into an area from a different watershed-are not subject to the rights of owners of riparian lands on a stream into which these waters drain, because they do not become a part of the natural waters of such stream.353 Continuity of streamflow.-In chapter 3 it is brought out that to constitute a watercourse, continuity of the flow of water is not generally required, although subject to exceptions exemplified by the cited cases. With respect to the present context-riparian waters-the Washington Supreme Court held that the rights of a lower riparian owner remain attached to water that temporarily disappears in the channel, or sinks in and rises out of it, provided that the water can be traced back to the general course without 3S0Blalock, W. R., Judge, "Excerpts From the Opinion of the Trial Court," Proc, Water Law Conference, Univ. of Tex., 16, 32-38 (1959). 3ilLongmire v. Yakima Highlands In. & Land Co., 95 Wash. 302, 305-307,163 Pac. 782 (1917). See also, in chapter 3, "Floodflows-Flood Overflows-Overflows not Separated From the Stream-The situation in Washington." 3S2Carter v. Territory of Hawaii, 24 Haw. 47 (1917); Territory of Hawaii v. Gay, 31 Haw. 376 (1930), affirmed, 52 Fed. (2d) 356 (9th Cir. 1931), certiorari denied, 284 U.S. ' 677(1931). This is treated in detail in the discussion of riparian rights in Hawaii in chapter 12. 353E. Clemens Horst Co. v. Tan Min. Co., 174 Cal. 430, 440, 163 Pac. 492 (1917); E. Clemens Horst Co. v. New Blue Point Min. Co., 177 Cal. 631, 635-641, 171 Pac. 417 (1918); Crane v. Stevinson, 5 Cal. (2d) 387, 392-395, 399-400, 54 Pac. (2d) 1100 (1936);Elgin v. Weatherstone, 123 Wash. 429,432434, 212 Pac. 562 (1923). See Bloss v.Rahilly, 16 Cal. (2d) 70, 75-76,104 Pac. (2d) 1049 (1940). The Texas Supreme Court, in holding that riparian rights attach to streamwaters that do not rise above the line of highest ordinary and normal flow, added that this includes all such waters regardless of source. This apparently might sometimes include return flows from foreign waters, but the court did not expressly consider this question. Motl v. Boyd, 116 Tex. 82,122, 286 S.W. 458 (1926). |